Election Laws on Trial in Queens

Published: June 20, 1986

A gross injustice seems about to occur in the Sixth Congressional District in Queens, snatching a narrow victory at the polls from the Rev. Floyd Flake. Trouble is, this impermissible outcome is virtually guaranteed by the workings of New York and Federal laws. Only the judicial imagination may yet find a fair way out.

In the special election on June 10 to pick a successor to the late Joseph Addabbo, Mr. Flake, a Democrat running on the Unity Party line against four candidates, defeated Alton Waldon, the regular Democrat, by 197 votes. But after 800 absentee ballots were added to the count of 40,000, Mr. Waldon led by 278 votes. The shift was foreordained because Mr. Flake had been, legally but unfairly, left off the absentee ballots.

That happened while Mr. Flake was temporarily ruled off all ballots by the Board of Elections for failing to file his ''acceptance'' of the Unity Party nomination, as required by law of ''independent'' candidates. The Queens Supreme Court revived his candidacy on May 29, but by then the board had mailed out absentee ballots and, as also required by law, left his name off. The board contends it was too late to reprint the ballots; some were bound overseas and all had to be posted back before June 10. The Queens Supreme Court now promises within a week to decide whether to count the prejudiced absentee votes. It cannot, however, choose the obvious remedy of calling a new election. The law permits that only in primaries. Perhaps Mr. Flake can find a Federal court to intervene; that might cause the special election to overlap with this summer's primary campaign for the regular November election, in which Mr. Flake and Mr. Waldon are sure to be contenders.

If the Federal courts do not intervene, the final arbiter of a disputed election under Federal law becomes the House of Representatives. Its Democratic majority will likely favor Mr. Waldon, the regular party man, even though Mr. Flake would vote and perhaps even list himself as a Democrat.

Mr. Flake and his supporters are victims of New York laws made deliberately inflexible to favor incumbents over neophytes, regulars over insurgents and established parties over ad hoc groups. Whatever the need for some barriers, these have produced an absurdity. If no court can call a quick new election, it may be best to void the result altogether and wait until November to fill the vacancy. And let New York's Legislature now purge the law of the tortuous provisions that give experienced political operators so much unfair advantage.